Mec 1996 July Adv Opin no 96-080-E

OFFICIAL ADVISORY OPINION NO 96-080-E

July 12, 1996

This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on July 12, 1996, basing its approval solely on the facts and circumstances stated herein.

May a county board of supervisors lease office space for the district attorney from the district attorney's father?

State law restricts the Mississippi Ethics Commission to interpreting and issuing opinions on Sections 25-4-101 through 25-4-119, 1972 Mississippi Code Annotated and Article IV, Section 109, Mississippi Constitution of 1890. Therefore, this opinion does not address the Mississippi laws outside the Commission's jurisdiction nor the governmental entities' internal rules and regulations.

The pertinent conflict of interest laws to be considered here are:

Code Section 25-4-101 states:

"The legislature declares that elective and public office and employment is a public trust and any effort to realize personal gain through official conduct, other than as provided by law, or as a natural consequence of the employment or position, is a violation of that trust. Therefore, public servants shall endeavor to pursue a course of conduct which will not raise suspicion among the public that they are likely to be engaged in acts that are in violation of this trust and which will not reflect unfavorably upon the state and local governments."

Code Section 25-4-103 (f)(i)(ii), (g)(i)(v), (h), (1), (p)(i)(ii)(iii) and (q) states:

"(f) 'Contract' means:

(i) Any agreement to which the government is a party; or
(ii) Any agreement on behalf of the government which involves the payment of public funds.

(g) 'Governmental' means the state and all political entities thereof, both collectively and separately, including but not limited to:

(i) Counties; and

(v) Any department, agency, board, commission, institution, instrumentality, or legislative or administrative body of the state, counties or municipalities created by statute, ordinance or executive order including all units that expend public funds.

(h) 'Governmental entity' means the state, a county, a municipality or any other separate political subdivision authorized by law to exercise a part of the sovereign power of the state.

(1) 'Pecuniary benefit' means benefit in the form of money, property, commercial interests or anything else the primary significance of which is economic gain. Expenses associated with social occasions afforded public servants shall not be deemed a pecuniary benefit.

(p) 'Public servant' means:

(i) Any elected or appointed official of the government;

(ii) Any officer, director, commissioner, supervisor, chief, head, agent or employee of the government or any agency thereof, or of any public entity created by or under the laws of the State of Mississippi or created by an agency or governmental entity thereof, any of which is funded by public funds or which expends, authorizes or recommends the use of public funds; or

(iii) Any individual who receives a salary, per diem or expenses paid in whole or in part out of funds authorized to be expended by the government.

(q) 'Relative' means the spouse, child or parent."

Code Section 25-4-105(1) states:

"(1) No public servant shall use his official position to obtain pecuniary benefit for himself other than that compensation provided for by law, or to obtain pecuniary benefit for any relative or any business with which he is associated."

Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.

My partner and I represent the County Board of Supervisors.

The Board of Supervisors have received a request from the District Attorney to

provide office space for the district attorney since he will be residing in this City.

The Board desires to rent office space from the District Attorney's father who owns office space located directly across the street from the County Courthouse in the City. However, we felt it might be advisable to secure an opinion from the Ethics Commission regarding the rental of this office.

The lease contract would be solely between the County and the District Attorney's father. The District Attorney owns no interest whatsoever in the building to be leased.

Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.

The board of supervisors' leasing of a building from the district attorney's father for use by the district attorney is not as such a violation of the conflict of interest laws.

Code Section 25-4-105(1), cited above, does prohibit the district attorney from using his official position to obtain the lease of the building for his father. Therefore, the district attorney may not in any way suggest or promote the leasing of his father's building by the board of supervisors. The board of supervisors must independently decide what is in the county's best interest for the proper prosecution of criminal matters.

Should the county supplement the district attorney 's budget by a direct payment to his office allowance fund, then Code Section 25-4-105(1) would prohibit the district attorney from leasing his father's office space.

The issue presented by the requestor also must be viewed as it relates to Code Section 25-4- 101, set forth above. This code section sets the tone for the conflict of interest laws as the Legislature's "Declaration of Public Policy." This public policy can be summarized as any circumstance having the potential of creating suspicion among the public and reflecting unfavorably upon the state or local government should be closely reviewed by public servants with the intent to reduce or eliminate any suspicion on the part of the public which detracts from the public's trust in state or local government.

The county's leasing of office space from a public official's relative which the public official will be occupying is a circumstance that has the potential of creating suspicion among the public and reflecting unfavorably upon the county government.

Ronald E. Crowe

Executive Director